October 05, 2011

Statement Of Robert L. Ostertag, October 1999 - Center for Professional Responsibility




October 9, 1999
Cleveland, Ohio

Robert L. Ostertag, former president of the New York State Bar Association, former chair of its Special Committee on the Future of the Profession, and current member of the Special Committee on the Law Governing Firm Structure and Operation (MDP2), presented his written remarks to the Chair and the assemblage.

The Chair asked Mr. Ostertag if he believes (as he stated) that there are lawyers and nonlawyers currently violating the rules, what does he propose to do about it? When and where does he propose to start? Mr. Ostertag said that if he had those answers he'd be happy to give them to the Chair but that was not what he came to the hearing to do. He thinks it's time the unlawful practice rules in this country and the ethics rules involving how attorneys practice be enforced. If, as the Commission correctly indicated, certain lawyers are misrepresenting what they do, lawyers should do something about it. Rather than cave in to the effort on the part of outsiders to take over, in one fashion or another, directly or indirectly, the legal service profession that has functioned so long and so well in this country, the organized bar ought perhaps be working to clean up its own house. Referencing yesterday's discussion, the Chair asked if Mr. Ostertag would agree that the intervention of the legislature would be the worst alternative of all. Asked if faced with the choice he would favor some change in the Model Rules to allow multidisciplinary practice in some form rather than a legislative solution, Mr. Ostertag said he doesn't know what the legislative solution would be so he is not sure he can give an answer. However, he does not favor multidisciplinary practice, certainly not in the form proposed; he doesn't think it's in the public interest. Mentioning the previous speaker's answer to the question, "What are the benefits?", the response was nothing more than reduced overhead and everyone being located in one building. Frankly, he found these to be no answer to anything at all. Suppose the accounting firm and the law firm are in the same building, on the same floor, is that going to make a difference? Does it make a difference that perhaps the accountant or the lawyer has to hop a subway to some other place or go to some other building to sit down and meet? His point is that he doesn't ever remember or know of a situation where lawyers and accountants or doctors or psychologists or environmentalists or insurance people or anyone else were not able to sit down at a table to discuss an issue and reach a resolution even without multidisciplinary practice, as proposed. He doesn't believe this business of "one stop shopping" and the convenience of clients, none of which has been seriously demonstrated, is really an issue at all. He believes that what has happened is that outsiders have confronted lawyers and told them, without any empirical support at all, that their clients are clamoring for one-stop shopping. Mr. Ostertag said he doesn't have any clients clamoring for it and he doubts that anyone else does either in point of truth. He thinks it's a sham.

Chris Barrett of Akron, Ohio, characterized his question as a follow-up to comments that the drive of free market forces moving toward MDPs is going to be bad and that the monopoly of the legal profession should be preserved. He asked whether there was any concern based on the conclusion of a number of well-respected legal scholars - and not everyone agrees on this - that the existing unauthorized practice of law statutes of most states are currently illegal under both federal and state antitrust laws, a position he claimed is largely held by the Antitrust Division of the U.S. Department of Justice. Mr. Ostertag said he couldn't answer that question because the unauthorized practice statutes haven't been implemented or tested very often. The answer he proposed is the one he already gave; if the UPL statutes are to be tested and if the so-called monopoly is not found in the best interests of society, then so be it. But until then, we have unauthorized practice statutes and people are unlawfully practicing law all over the country, every day. There now are attorneys in multidisciplinary settings who are misrepresenting what they do because they are doing things they know they're not supposed to do. Why does the organized bar, some of which is integrated and has the force of governmental authority, put up with that? Why don't they address the problem? At the moment the Bar is seemingly afraid to do anything for fear the legal profession may lose. If we lose, we lose. Nothing dishonorable about losing.